Under California Health and Safety code section 11350, it is unlawful to posses a “controlled substance.” A controlled substance is any narcotic or illegal drug such as cocaine, heroine, and LSD. A controlled substance is also a prescription drug such as hydrocodone, oxycodone, and codeine. Marijuana, other stimulants, and methamphetamine are not considered controlled substances and thus prosecuted under section 11377 instead.
In order to prove you guilty of a violation of section 11350, the prosecutor must prove beyond a reasonable doubt the following: 1) you “possessed” the drug; 2) you knew of the drug’s presence; 3) you knew of the drug’s nature as a controlled substance; and 4) the drug was in sufficient quantity to be used as a controlled substance.
Possession can be actual, constructive, or joint. Possession of a controlled substance under all three of these forms is prohibited.
You have “actual” possession of a controlled substance when you have immediate physical control of it. The drug is either on your person, or in your purse or briefcase. Note that actual possession need not mean that the drugs were actually on you when the police conducted the search. As long as you had actual possession of the drug shortly before the police search, your conduct has met the “possession” element of the code. For example, the police conduct a traffic stop of Jack’s car. During the investigation, Jack swallows the small amount of cocaine that he had kept in his pocket. The officer witnesses this act. Jack can be charged with section 11350 because, according to the officer’s testimony, there was no question that Jack possessed the drug prior to ingesting it.
You have “constructive” possession of a drug when the drug was not discovered on your person but at a location over which you had control. For example, the police raid Jack’s house and discover bags of cocaine in his closet. At the time, Jack was not near his closet; he was at his girlfriend’s house. Jack is in constructive possession of the bags of cocaine because they were found in his closet, a location to which he had access and over which he had control. Now imagine that the bags of cocaine were found in a closet that Jack shared with his son. Though Jack had access to and control over that closet, the fact that he shares it with his son makes it unclear whether he (Jack) was in possession of the bags of cocaine. Thus, access to the controlled substance does not and of itself prove possession.
You have “joint” possession of a drug when you and another person or other persons share actual or constructive possession of the drug. For example, bags of cocaine are found in a closet that Jack shares with his brother, Jake. The evidence shows that both Jack and Jake knew of the drug’s presence in the closet. Both brothers can be charged with code section 11350 because they had joint possession of the drug.
The prosecutor must prove that you were aware of the drug’s presence and of its nature as a controlled substance. If you had no idea that the drug was in your possession, or if you did not recognize that the material in your possession was a controlled substance, then you cannot be found guilty of code section 11350. For example, Jack visits his friend Jill. Jill asks Jack if he could deliver a container of salt to Jill’s mother. Jill tells Jack that the salt is a special salt that treats joint arthritis. What Jill is really asking Jack to deliver is cocaine. Jill packs the cocaine in a salt container. Jack takes the container and places it in his car. He is stopped for a traffic violation and the container is discovered. Jack is not guilty of code section 11350 because he believed that the container carried salt.
The prosecutor has to prove that the amount of drug you possessed was sufficient to constitute a “usable” amount—that is, sufficient for the drug to have the effect it ordinarily produces. If all you had in your possession was residue or minor traces of the drug, you cannot be found guilty of code section 11350.
DEFENSES TO CODE SECTION 11350
You did not have knowledge that the material in your possession was a controlled substance
If you did not recognize that what you had in your possession was an illegal drug—e.g., in the scenario above, Jack thought what he was carrying was salt—then you cannot be found guilty of code section 11350.
You did not have knowledge that you were in possession of a controlled substance
Imagine that you allowed your brother to borrow your car. Unbeknownst to you, he used the car to pick up some cocaine from a friend. He then concealed the bag of cocaine in the glove compartment of your car. If your car is searched by law enforcement and the cocaine is discovered, you are not guilty of 11350 because you had no idea that there was cocaine placed in your car.
You had a valid prescription for the drug
You cannot be found guilt of code section 11350 if you had a valid prescription for the controlled substance and if your possession of the drug was consistent with the purposes of the prescription. If you possess more quantity of the controlled substance than prescribed by the prescription, then this defense does not apply.
You had temporary possession of the controlled substance
This defense will apply only if your temporary possession of the drug was so that you can prevent someone else’s unlawful access to it. This defense will not apply if you disposed of the drug to prevent law enforcement’s discovery of it.
The drug was discovered as a result of illegal search and seizure
The Fourth Amendment protects your right to privacy of your home and vehicle. Law enforcement have to have either your expressed consent, a legitimate warrant, or justification under a qualified exception to search your home and vehicle. If all of these criteria were absent in the police officer’s conduct, then the evidence against you was the result of an illegal search and seizure. As such, this evidence is inadmissible in a court of law. A skilled defense attorney can use this factor as basis to earn a dismissal of the charges against you, or as leverage to negotiate a more favorable disposition on your behalf.
PENALTIES FOR CODE SECTION 11350
Before the passage Prop 47 in November 2014, a violation of code section 11350 was prosecuted as a felony. Since the passage of prop 47, a violation of penal code section 11350 is typically prosecuted as a misdemeanor. As a misdemeanor, a conviction for 11350 subjects you to one year in county jail and/or a maximum fine of $1,000.00. There are, however, alternatives to these penalties. These alternatives include drug diversion and prop 36/prop 1000.
“Judicial Drug Diversion”
A judge has the discretion to sentence you to judicial diversion whereby you earn dismissal of the charges against you upon fulfillment of certain terms and conditions. These typically include completion of drug courses, satisfactory drug testing, and/or community service or community labor.
Prop 36 or PC 1000
Prop 36 or PC 1000, typically offered by the prosecution, is another form of diversion. If you complete the terms and conditions of the program, the case against you will be ultimately dismissed.
HOW CAN WE HELP
Negin will relentlessly pursue any and all defenses relevant to your specific case. In addition, she will present any and all mitigating factors to earn you the best disposition in your case, whether that means straight dismissal of the case or ultimate dismissal of the case through a diversion program.
Actual Case: In People v. Michael M (Case No. not disclosed per client’s request), Mr. M was charged with a violation of penal code section 11350. Mr. M had suffered prior convictions for this offense. Mr. M hired Negin to represent him. Negin thoroughly examined the circumstances of Mr. M’s search and arrest for any procedural challenges that she could use as leverage. She also had Mr. H immediately enroll in an outpatient program and get regularly tested. Negin ultimately presented a mitigation package that convinced the judge to grant Mr. M judicial diversion. Because Mr. was a multiple offender, he was not technically a good candidate for judicial diversion. Negin’s strategic and relentless lawyering won Mr. M this favorable outcome.